Wallace v. Lawrence Correctional Center

Filing 11

IT IS ORDERED that Plaintiff is GRANTED leave to file a First Amended Complaint in this case on or before June 19, 2017. Should Plaintiff fail to file his First Amended Complaint within the allotted time, dismissal of this action will become with prejudice. To enable Plaintiff to comply with this Order, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form, as well as a form motion for recruitment of counsel. (Amended Pleadings due by 6/19/2017). Signed by Judge David R. Herndon on 5/20/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GREGORY WALLACE,
#2016-0910104,
Plaintiff,

Case No. 3:

–00487 DRH

vs.
LAWRENCE CORRECTIONAL
CENTER,
Defendant.
MEMORANDUM AND ORDER
HERNDON
Plaintiff Gregory Wallace, an inmate who is currently detained at Cook
County Jail, brings this civil rights action pro se pursuant to 42 U.S.C. § 1983.
(Doc. 1). This case was transferred from the United States District Court for the
Northern District of Illinois to the Southern District of Illinois on May 10, 2017.
See Wallace v. Lawrence Corr. Ctr., No. 17-cv-03299 (N.D. Ill. filed May 1, 2017).
In the Complaint, Plaintiff alleges that he fell down the stairs at Lawrence
Correctional Center and injured his lower back and leg. (Doc. 1, p. 6). He claims
that these injuries could have been avoided if he had been housed on the lower
level of the prison, consistent with his medical permits.

(Doc. 1, pp. 6-8).

Plaintiff sues the prison for neglect, but includes no request for relief. (Doc. 1, p.
6).
The Complaint is now subject to preliminary review under 28 U.S.C. §
1915A, which provides:

(a)
– The court shall review, before docketing, if
feasible or, in any event, as soon as practicable after docketing, a
complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity.
(b)
– On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on
which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in
fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Frivolousness is an

objective standard that refers to a claim that any reasonable person would find
meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action
fails to state a claim upon which relief can be granted if it does not plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

The claim of entitlement to relief must

cross “the line between possibility and plausibility.” Id. at 557. At this juncture,
the factual allegations of the pro se complaint are to be liberally construed. See
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Complaint does not survive screening under this standard and shall be
dismissed.

Plaintiff brings the instant action against Lawrence Correctional Center for
neglect. (Doc. 1). He includes no allegations on the two pages available for his
statement of claim. (Doc. 1, pp. 4-5). In his request for relief, Plaintiff simply
asserts that he is suing the “[i]nstitution for neglecting to house [him] in [the]

lower level which resulted in [his] injury of falling down stair[s] [and] injuring [his]
lower back and left leg.” (Doc. 1, p. 6). He seeks no relief. Id.
Along with the Complaint, Plaintiff submitted a copy of a medical permit for
a quad cane that was issued on December 24, 2016. (Doc. 1, p. 7). He also
included a copy of a permit for housing on a low gallery “due to his medical
conditions” that was issued on January 31, 2017. (Doc. 1, p. 8).

To facilitate the orderly management of future proceedings in this case, and
in accordance with the objectives of Federal Rules of Civil Procedure 8(e) and
10(b), the Court deems it appropriate to organize the claims in Plaintiff’s pro se
Complaint (Doc. 1) into the following counts:
-

Eighth Amendment deliberate indifference to medical needs
claim against Defendant for denying Plaintiff housing in a low
gallery and/or providing him with inadequate medical care for
the injuries he sustained from falling down the prison’s stairs.

-

Americans with Disabilities Act (“ADA”) and/or Rehabilitation
Act claim against Defendant for failing to house Plaintiff on a
low gallery.

The parties and the Court will use these designations in all future pleadings and
orders, unless otherwise directed by a judicial officer of this Court.
Neither claim survives screening and shall therefore be dismissed.
However, the dismissal of Counts 1 and 2 shall be without prejudice. Plaintiff
shall have an opportunity to re-plead both claims, if he chooses, by filing a First
Amended Complaint according to the deadline and instructions set forth in the
disposition.

The Complaint supports no Eighth Amendment claim against the prison.
The Eighth Amendment protects prisoners from cruel and unusual punishment.
See Berry v. Peterman, 604 F.3d 435 (7th Cir. 2010). Deliberate indifference to
serious medical needs of prisoners constitutes cruel and unusual punishment.
U.S. CONST., amend. VIII; Estelle v. Gamble, 429 U.S. 97, 104 (1976); Erickson v.
Pardus, 551 U.S. 89, 94 (2006) (per curiam). A prisoner who wishes to bring a
claim against state officials under the Eighth Amendment must show that he
suffered from a sufficiently serious medical condition (i.e., an objective standard)
and state officials exhibited deliberate indifference to his medical needs (i.e., a
subjective standard). Farmer v. Brennan, 511 U.S. 825, 834 (1994); Chapman
v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001).
The Complaint does not satisfy either standard.

With regard to the

objective component of this claim, it is impossible for the Court to evaluate the
seriousness of Plaintiff’s medical condition. He has not identified what condition
necessitated the use of a cane or low gallery/low bunk permit. Plaintiff has also
not described the injuries he sustained from falling down the stairs with enough
detail to determine that they were serious.
With regard to the subjective component, Plaintiff has not identified the
particular individual(s) who exhibited deliberate indifference to his serious
medical needs.

To state a claim under the Eighth Amendment, Plaintiff must

name the individual(s) who knew of his serious medical needs and his permits
but denied him appropriate housing and/or medical care.

The Eighth

Amendment requires deliberate indifference on the part of an individual
defendant.

Negligence, or even gross negligence, does not support an Eighth

Amendment claim. Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008);
accord Berry, 604 F.3d at 440; McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.
2010).
Plaintiff names Lawrence Correctional Center as the only defendant. The
prison is not a “person” who is subject to suit for money damages under § 1983.
The prison is a division of the Illinois Department of Corrections, which is a state
government agency. The Supreme Court has held that “neither a State nor its
officials acting in their official capacities are ‘persons’ under § 1983.”
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

Will v.

See also Wynn v.

Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment bars suits
against states in federal court for money damages); Billman v. Ind. Dep’t of Corr.,
56 F.3d 785, 788 (7th Cir. 1995) (state Department of Corrections is immune
from suit by virtue of Eleventh Amendment); Hughes v. Joliet Corr. Ctr., 931 F.2d
425, 427 (7th Cir. 1991) (same); Santiago v. Lane, 894 F.2d 219, 220 n. 3 (7th
Cir. 1990) (same). Lawrence Correctional Center shall therefore be dismissed
from this action with prejudice.
The Eighth Amendment claim in Count 1 shall be dismissed. Plaintiff may
not reassert this claim against Lawrence Correctional Center. However, Count 1
shall be dismissed without prejudice, so that Plaintiff may bring it against the
individual(s) who exhibited deliberate indifference to his serious medical needs.

The Complaint also supports no claim under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., or the Rehabilitation Act, 29
U.S.C. §§ 794-94e. Title II of the ADA provides that “no qualified individual with a
disability shall, because of that disability . . . be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132 (2006). The Rehabilitation
Act also prohibits discrimination by entities receiving federal funding (such as
state prisons) against qualified individuals based on a physical or mental
disability. See 29 U.S.C. §§ 794-94e. Discrimination under both includes the
failure to accommodate a disability. Jaros v. Illinois Dep’t of Corrections, 684
F.3d 667, 671 (7th Cir. 2012).
At this stage, the Court finds no basis for allowing Plaintiff to proceed with
a claim under the ADA or Rehabilitation Act.

For one thing, Plaintiff has not

alleged that he is a qualified individual with a disability or that he was subject to
discrimination at the prison. Further, he has not named the proper defendant in
connection with an ADA or Rehabilitation Act claim. The proper defendant is the
relevant state department or agency. See 42 U.S.C. § 12131(1)(b); Jaros, 684
F.3d at 670 n. 2 (individual capacity claims are not available; the proper
defendant is the agency or its director (in his or her official capacity)). Finally, it
is unclear what relief Plaintiff seeks and whether it is even available under the
ADA or Rehabilitation Act.

The ADA and/or Rehabilitation Act claim in Count 2 shall also be
dismissed. Plaintiff may not reassert this claim against Lawrence Correctional
Center. However, Count 2 shall be dismissed without prejudice, so that Plaintiff
may re-plead this claim in his First Amended Complaint, if he chooses to do so.

in forma pauperis

1.

)

Plaintiff’s IFP Motion shall be addressed in a separate court order.
2.

Motion for

)

Plaintiff’s request for the Court’s assistance in recruiting counsel to
represent him in this matter is DENIED
incomplete motion in support of his request. (Doc. 4).

.

Plaintiff filed an

In it, he disclosed no

efforts to secure an attorney on his own before seeking the Court’s assistance.
(Doc. 4, p. 1). Beyond indicating that he has a limited education, he disclosed no
other impediments to proceeding with his case pro se, such as emotional,
intellectual, physical, language, or other barriers. (Doc. 4, pp. 1-2).
There is no constitutional or statutory right to counsel in federal civil cases.
Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v.
Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Nevertheless, the district court
has discretion under 28 U.S.C. § 1915(e)(1) to recruit counsel for an indigent
litigant. Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866–67 (7th Cir.
2013). When a pro se litigant submits a request for assistance of counsel, the
Court must first consider whether the indigent plaintiff has made reasonable
attempts to secure counsel on his own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th

Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007)). If so, the
Court must examine “whether the difficulty of the case—factually and legally—
exceeds the particular plaintiff’s capacity as a layperson to coherently present it.”
Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The question . . . is
whether the plaintiff appears competent to litigate his own claims, given their
degree of difficulty, and this includes the tasks that normally attend litigation:
evidence gathering, preparing and responding to motions and other court filings,
and trial.” Pruitt, 503 F.3d at 655. The Court also considers such factors as the
plaintiff’s

“literacy,

communication

skills,

education

level,

and

litigation

experience.” Id.
Plaintiff has not cleared the first hurdle. He has demonstrated no efforts to
seek counsel on his own. (Doc. 4, p. 1).

Further, the Court is still trying to

understand the nature and scope of his claims. He has competently articulated
the general reason for initiating this suit, and he has demonstrated an ability to
communicate in writing and prepare pleadings.

Plaintiff simply needs to

elaborate on his claims against each individual who violated his federal
constitutional or statutory rights.
Under the circumstances, Plaintiff’s request for counsel is denied.
However, the denial is without prejudice, and the Court remains open to
recruiting counsel on Plaintiff’s behalf as the proceeds. Plaintiff is free to renew
his request for counsel by filing a Motion for Recruitment of Counsel at any time

he deems it necessary and appropriate, after first making an effort to secure
counsel on his own.

IT IS HEREBY ORDERED that the Complaint is DISMISSED without
prejudice for failure to state a claim upon which relief may be granted.
IT IS ORDERED that Defendant LAWRENCE CORRECTIONAL CENTER
is DISMISSED with prejudice from this action because the Complaint states no
claim against this defendant upon which relief may be granted.
IT IS ORDERED that COUNTS 1 and 2 are otherwise DISMISSED without
prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file a “First
Amended Complaint” in this case on or before

9, 2017. Should Plaintiff

fail to file his First Amended Complaint within the allotted time, dismissal of this
action will become with prejudice. FED. R. CIV. P. 41(b). See generally Ladien v.
Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466
(7th Cir. 1994). Further, a “strike” will be assessed. See 28 U.S.C. § 1915(g).
Should Plaintiff decide to file an amended complaint, it is strongly
recommended that he use the forms designed for use in this District for such
actions. He should be careful to label the pleading, “First Amended Complaint,”
and he must list this case number (Case No. 17-487-DRH) on the first page. To
enable Plaintiff to comply with this Order, the Clerk is DIRECTED to mail

Plaintiff a blank civil rights complaint form, as well as a form motion for
recruitment of counsel.
In the amended complaint, Plaintiff must describe the actions taken by each
defendant that resulted in the deprivation of his federal constitutional and/or
statutory rights.

He should attempt to include the facts of his case in

chronological order, inserting each defendant’s name where necessary to identify
the actors. Plaintiff should refrain from filing unnecessary exhibits or including
any other unrelated claims in his amended complaint.

or both. See FED. R. CIV. P. 8(a)(3).

fees will be assessed.
Plaintiff is ADVISED that this dismissal shall not count as one of his
allotted “strikes” under the provisions of 28 U.S.C. § 1915(g).
An amended complaint supersedes and replaces the original Complaint,
rendering the original void. See Flannery v. Recording Indus. Ass’n of Am., 354
F.3d 632, 638 n. 1 (7th Cir. 2004).

The Court will not accept piecemeal

amendments to the original Complaint. Thus, the First Amended Complaint must
stand on its own, without reference to any previous pleading, and Plaintiff must
re-file any exhibits he wishes the Court to consider along with the First Amended
Complaint. Finally, the First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915A.

Plaintiff is further ADVISED that his obligation to pay the filing fee for this
action was incurred at the time the action was filed, thus the filing fee of $400.00 1
remains due and payable, regardless of whether Plaintiff elects to file a First
Amended Complaint. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d
464, 467 (7th Cir. 1998).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to
keep the Clerk of Court and each opposing party informed of any change in his
address; the Court will not independently investigate his whereabouts. This shall
be done in writing and not later than 7 days after a transfer or other change in
address occurs.

Failure to comply with this order will cause a delay in the

transmission of court documents and may result in dismissal of this action for
want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
Signed this 20th day of May, 2017.

Judge Herndon
2017.05.20
06:43:01 -05'00'

1

Effective May 1, 2013, the filing fee for a civil case increased from $350.00 to $400.00,
by the addition of a new $50.00 administrative fee for filing a civil action, suit, or
proceeding in a district court. See Judicial Conference Schedule of Fees - District Court
Miscellaneous Fee Schedule, 28 U.S.C. § 1914, No. 14. A litigant who is granted IFP
status, however, is exempt from paying the new $50.00 fee.